She said, he said: Parts 1 and 2

Reporting on a rape trial that never made headlines

Part 1: She says

Introduction

This sexual assault trial took place in Toronto in December 2014. At the time I was looking to cover a “regular” trial, one that wasn’t in the headlines. The goal was to give readers a better idea of what happens in court on an everyday basis when sexual assault is prosecuted.

I was the sole reporter in the courtroom and the only observer not directly related to the case. The mother and grandmother of the accused, who I will call Matthew, attended throughout the trial. The complainant, who will be known as Ava, was supported by a representative from victim services and the detective in charge of her case.

Ava’s family and Matthew’s father were not permitted in the courtroom as they were all potential witnesses. They bade their time in the courthouse hallways, pacing or sitting nervously.

The rape in question was alleged to have taken place almost two and a half years earlier when Ava was seventeen years old and about to enter her final year of high school. Matthew, a lacrosse player who was a year older, attended a special sports boarding school in the U.S. and was on his way to winning a full scholarship to college.

December 2014

Ava, who is the first witness and key to the prosecution’s case, proves extremely agitated on the witness stand as Sharna Reid, an assistant crown attorney, questions her in a low-key, matter-of-fact manner. Ava explains that she had dated the defendant in the summer of 2012, but when the crown asks if they were still boyfriend and girlfriend on August 2, the day of the alleged assault, she doesn’t reply. The crown rephrases the question and she still can’t answer.

“I can’t breathe,” she says, barely audible.

Justice Gary Trotter, who is perched both next to and above the witness, looks down and tells Ava that she needs to relax, that she is there to tell her story and he is there to listen. Trotter asks if she wants a break and when she says yes, the court is recessed for 10 minutes or longer if she needs it. He tells the crown to call him when they’re ready. 

After Ava leaves the room, the judge turns to the defence lawyers, Carolyne Kerr and Gary Stortini. “I don’t want you to think I’m coddling the witness,” he says, explaining that last week he had called out another witness for what he felt were amateur theatrics.

This trial is taking place in December of 2014, a time when rape and sexual assault are in the headlines almost daily. A steady stream of women are accusing Bill Cosby of drugging and sexually assaulting them while, at the same time, a sensational Rolling Stone magazine cover story on college rape is being debunked as fiction and lies. 

The accused is being tried by judge alone without a jury. If the judge believes his account of events, he will be found not guilty. If the judge can’t decide who to believe, he will be found not guilty. If the judge believes Ava’s story of the assault, has been proven beyond a reasonable doubt, Matthew will be found guilty. 

Half an hour later when court resumes Ava, although still visibly distraught, is able to answer the prosecutor’s pre-break question. Some two weeks before the alleged assault, she told A she just wanted to be friends, she says. “For my birthday, he didn’t show up. I took it as a sign I was wasting my time, to end it.”

The standard publication ban covering sexual assault cases prevents the revelation of Ava’s name and any other details that may identify her, but I can tell you that she is a fresh faced and attractive university student. I have also made the decision not to name Matthew. Nothing about this case has ever made the news and, unless something changes, if he is found not guilty, he will walk away from all this with not so much as a single Google mention about this alleged rape.

Matthew is tall and dark, the physical opposite of Ava but also attractive. His scholarship and promising future depend on this trial, and he will sit quietly and attentively throughout, until he takes the witness stand to give his version of events.

For now, however, he listens to Ava, who is answering questions about the details of her relationship with him and the alleged rape. The crown asks if the videotaped statement she gave to police on August 3, 2012 is the truth. Ava says it is, which means that instead of her testifying as to what happened back then, her police statement will be taken as evidence. The interview appears on the monitors of all the court officials and lawyers. 

Somewhat surprisingly, the two officers who take Ava’s statement, are both men. The primary interviewer is Detective Brian Wookey, who is present in court throughout the trial and extremely protective of Ava. The videotaped statement, which was made a day and a half after the alleged assault, begins with Ava giving her account of what happened in the preceding hours when she and two friends went to see a Down with Webster concert at Dundas Square.

“I’ve heard of them,” says Wookey. “But I don’t know any of their tunes.”

He appears to have a  good rapport with Ava and she seems less nervous in the video than the courtroom as she explains how her father dropped her off at her girlfriend Rebecca’s house, where she was supposed to spend the night. (Rebecca is not her real name.)

Ava says that she, Rebecca and another friend got ready for the concert, and split a mickey of rum between them before hopping on the subway to head downtown. At the concert, Ava and Rebecca got into an argument over alcohol. Rebecca and the other friend walked off, leaving Ava to find her own way home. She says that, because it was after midnight and the bus from the subway to her house was no longer running, she started calling friends with cars, looking for someone to give her a lift home from the subway  station. According to Ava’s account, no one answered their phone so she called Matthew, who agreed to meet her at the subway station nearest her home.

Ava says she and Matthew hadn’t had much contact in the two weeks since he stood her up on her birthday. They had texted the weekend before while she was at a friend’s cottage in Muskoka. And then earlier that day she been in touch with him about getting some of her belongings back.

How long did you talk? asks Wookey in the video.

“A total of an hour throughout the day,” says Ava. “There were 20 messages between me and Matthew.”

Wookey is confused. When you say talk, he asks, do you mean talk on the phone or texts?”

“No talk on the phone, just messages,” says Ava. “BBM.”

As the videotape plays, Ava watches herself from the witness stand. She covers her eyes with her hand and, at other times, her mouth. She pulls up her scarf to hide the bottom of her face. She looks away in distress. She cries.

Wookey asks her how she met the accused and she replies that she had known him since grade nine when he dated a friend of hers. “In April, he messaged me on Facebook that he was coming home from the States in June. He gave me his number and PIN.” They dated for about a month and a half before the split-up.

When Matthew picked her up at the subway station, she put some music on in the car and told him what she’d been doing. “It was normal chat, didn’t feel awkward,” says Ava. “I said I was good but tired, upset about Rebecca.”

They drove the normal route to Ava’s house, but just before they got there, she says Matthew turned into a school parking lot and asked if they could talk.

“There were two garbage bins. We were right beside the garbage bin,” she says. “He unbuckled his seatbelt. He tried kissing me. I pushed his face and said, ‘Please stop.’

“He said, ‘I know you want to. You miss me. I miss you.’”

She says he tried to kiss her again and got mad when she resisted.

According to her account, he said, “What am I? Your fucking taxi driver?”

“No, you’re a friend doing a favour,” she said.

“If I did you a favour, I should get a favour in return,” he said.

“I said, ‘Stop, you’re being ridiculous.’ I kept repeating stop. I asked him, ‘Please take me home.’ He said, ‘You want it,’ and put the passenger seat back.”

Over and over Ava repeats that she kept telling Matthew to stop, that it wasn’t funny, that she wanted to go home.

“I grabbed my phone. He grabbed it out of my hand and threw it in the back seat. The back of my phone fell off. I froze when he threw my phone.

“He was pinning me down. His knees were on my thighs.” He held down her arms, she says.

“He had sex with me when I didn’t want to.”

Wookey asks for details of the sexual assault. Among other things, he wants to know how long it lasted.

“Forty five minutes,” Ava says.

Wookey rephrases the question twice to make it clear he’s talking about the duration of the assault itself, not the entire encounter.

“Forty-five minute,” Ava repeats.

“I tried to push him off. He had no condom.”

As Ava listens to this discussion of the most intimate details of the alleged assault, she holds a kleenex over her mouth and a hand over his eyes. A few minutes later she puts her hands up through the scarf looped around her neck and holds her cheeks. She appears highly distressed.

After the alleged rape, as Matthew was supposedly putting on his pants, Ava says she grabbed her phone and ran out of the car to her home. It took her two minutes to get there.

The judge looks at Ava, who now has her head down on the witness stand so she can’t see him.

She says that when she arrived home she was crying and dishevelled. She immediately took a bath and noticed bruises on her arms and her legs. Her mother came into the bathroom and asked why she was upset, what was going on. Somehow her mother found Matthew’s number and began texting him.

Not long after, Ava’s father, who is divorced from her mother, arrived at the house. “My parents and I decided to call the police,” she said. An ambulance was called and she was taken to Sunnybrook hospital where she was treated by a rape nurse. They took vaginal and oral swabs, and she was prescribed antibiotics and an emergency contraceptive pill.

Wookey questions Ava about how she felt at the subway station where she met Matthew, if the effects of the alcohol had worn off. “I didn’t feel drunk,” she says. “I felt tired. I was not drunk. I was upset because of what happened with Rebecca.”

As the video statement wraps up, Wookey asks Ava to show him the bruises on her arms and legs. “You’ve done a very good job,” he says. 

In the courtroom, the video monitors are turned off and everyone leaves for the lunchtime break.  When we return, the photos of Ava’s injuries are entered for the record. The photos were taken on two different dates: on August 2, the day of the alleged assault, and on August 6, when the bruises would be at their most visible.

The crown attorney shows Ava the first photo in a series.

“What is the cause of those bruises?” she asks.

“What portion of his body caused that bruise?”

“Where was the photo taken?”

“Tell us about the injuries.”

When the August 6th photos are introduced, Ava is asked: “Was there any event or episode in between that caused the injuries?”

“The incident in the car August 2,” she says.

Ava seems less distraught than she was at the morning session, but she remains under pressure as the crown attorney asks some non-photo related questions.

“Could you have left that vehicle before you did?”

“No, he was holding me down.”

“Do you know whether the door was locked or unlocked?”

“No, I don’t know.”

“Describe your level of intoxication.”

“It decreased. I wasn’t even drunk.”

“What was the level of force?”

“His hands and his body.”

“Do you know what Matthew did when you left the car?”

“No, I didn’t look at him.”

When the crown attorney is finished questioning Ava, she leaves the witness stand and the room.

The court goes in camera over a 276 application, which will continue until lunchtime the following day. As a result of what are known as rape shield laws, limits have been placed on the questions that can be asked about the alleged victim's "other sexual behavior" including with the accused. 

The trial judge now decides — in a closed session in accordance with section 276 of the criminal code — whether the complainant's sexual history is relevant and whether its exclusion would infringe on the accused's right to a full defence. Other sexual activity cannot be introduced solely to show that the complainant is less worthy of belief or more likely to have consented to the sexual activity that is the basis of the charge. 

Part 2: The defence sows doubt

After the in camera session to determine, which, if any, parts of the alleged victim’s sexual activity were relevant to the case and could be introduced in court, Justice Gary Trotter ruled that the defence would be allowed to cross examine Ava on five specific items. Matthew, the accused, has a two-lawyer defence team: Carolyne Kerr, a former crown attorney who at one time prosecuted rape cases, and Gary Stortini, a veteran criminal defence lawyer with a grandfatherly air. Just as I was surprised to see two male detectives take the complainant’s statement, I am surprised to see that it is Stortini who will cross examine Ava. 

“I am going to ask you to bring your mind back to 2012,” says Stortini as he embarks on his mission of taking apart Ava’s statement to the police, a statement that had looked so very believable to me a few days earlier and will be in shreds once Stortini wraps up. 

Things go wonky right from the beginning when Ava denies having met Matthew at a school dance as she told the police in her statement. Stortini reminds Ava that this contradicts previous testimony, given under oath at the preliminary hearing in December 2013. He then suggests to Ava that she was the one who had initiated Facebook contact with the accused more than two years after the dance, not the other way around as she said in her statement to police. He implies that she might have done this as a result of losing a lot of weight.

“How tall are you?”

“5’5”

“How much did you weigh? You were heavier.”

“Now? 120.”

“How much heavier were you?”

“I was 150”

The witness is weeping as Stortini turns to the judge: “It’s almost impossible to cross examine her in this state,” he says.

“Is weight relevant?” asks Justice Trotter, who calls for a brief recess. In tears, Ava races off the witness stand out into the halls followed by Detective Brian Wookey, the officer in charge of her case. Stortini exits through the lawyers door only to storm back in minutes later to complain to the Crown about a conversation he has just overheard between the witness and policeman. Wookey follows on his heels.

“I’m not trying to influence her in any way. I’m just trying to calm her,” he says as he and Stortini — both men who are more than 6’ tall — raise their voices at each other. “Your comment is well received. I will stop that line of questioning,” says Wookey. “I apologize.”

By the time the judge returns, the ill feelings seem to have subsided. Stortini resumes his questioning, asking Ava why she is trying to give the impression that Matthew initiated the contact between them when it was the other way round. 

“False,” she says.

“Would you like to look?” he asks, as he points to the transcript from the preliminary hearing which he has just given her.

Ava turns away.

“You have to look at them even if you don’t want to,” says Stortini.

“You’re right,” says the judge to Stortini, “but you did ask her if she wanted to.”

Stortini nods and reads from the transcript. “Question: Back in June 2012 did you initiate contact? Answer: In the beginning, yes.” He looks at Ava and asks, “So you initiated contact?”

“Yes,” she says, in the first of many shifts she will make over the next three days of trial.

The lawyer asks if Ava did this because she was interested in Matthew.

“Why would I be interested in a guy who’s in a different country?” she says. “So, I’m interested in you because I see you? That makes no sense.”

Stortini brings up Matthew’s and Ava’s first in-person meeting. “You were attracted to him?” he asks

“I’m sorry, I could not like or be attracted to a guy I just met for two hours,” Ava responds as if Stortini is talking nonsense.

The lawyer turns and raises his eyebrows as he walks away from the witness stand back to his podium.

Stortini and Ava have starkly different accounts of Matthew’s and Ava’s first meeting. He says she and Matthew drove to the school parking lot, where she would later say the alleged rape took place, got out and walked around an adjoining park. They talked and briefly got to know each other before returning to Matthew’s mini van and having sex in the back seat.

“That never happened,” she cries. “That never happened.”

In her version of events, the pair went to Tim Horton’s for coffee.

“How long?” asks Stortini.

“Five minutes.”

“Drive through or sit down?”

“We got a coffee and walked.”

“What did he do with his car for two and a half hours? Where did you walk to?”

Ava asks to take a break.

Justice Trotter, who has been kind and accommodating to her, tells Ava that he’s in the middle, not on either side. “All of the questions asked have been proper,” he says. “They’ve been put in a polite and professional manner.”

When we return from lunch, Stortini continues with his narrative of a young couple who meet and embark immediately on an intense sexual relationship while Ava consistently rejects the lawyer’s suggestions. His client, he says, was busy, with both a full-time summer job in construction and lacrosse events in both Canada and the U.S., while Ava had a lot more time on her hands. She quickly grew frustrated that he didn’t have more time to spend with her.

The story Ava tells is that, for the first month, she and A were just friends. He meant nothing to her. Apart from the occasional hug, their interactions were entirely chaste. “I didn’t hound him,” she says, using for the first time, an expression she will repeat many times.

Stortini asks about a lacrosse game Ava attended the week she and Matthew met. Her mother drove her there and Matthew brought her back. On the way home, he says, the pair stopped in the parking lot of Matthew’s former high school and had sex in the back seat.

“No,” she cries. “Never happened.”

“You were on top.”

“It never happened. He took me straight home.”

“You left your panties behind.”

“No I did not,” she says, pulling her hair back and weeping before leaving the courtroom in a semi-hysterical state.

“This is very upsetting to the witness obviously,” says the judge. “But you have to do what you have to do.”

“I don’t feel comfortable not doing it,” says Stortini, noting that his persistence has already led Ava to change her account of events, including how she met Matthew and who initiated the contact in 2012.

When the trial resumes, Stortini addresses another topic. “On the way home from lacrosse, did you ask, ‘Where are we?’”

“I wanted to know his intentions. I’d only seen him a couple of times.”

The lawyer finds this strange, given that Ava is maintaining they were nothing more than friends.

“I was just curious why, as a single girl, he had asked me to come to his game,” she explains. “What were his intentions?”

“You didn’t care?’

“I didn’t care... I had friends. It wasn’t me hounding him.”

Stortini asks for details about how the two remained in text or BBM contact when Matthew travelled to the States for a lacrosse tournament, and how when he returned, he visited Ava at home and went to Swiss Chalet with several members of her family. 

“Were you holding hands under the table?” asks Stortini.

“No,” replies the witness as if this is a ludicrous suggestion. “We were eating. No because my niece was there.”

Stortini asks about the couple going to see a late show of The Amazing Spider-Man more than a month after their first meet-up.

“Were you holding hands, eating popcorn, getting comfortable?”

“No, we just put our feet on chairs”

“So you weren’t being affectionate at all, correct?”

“Yes. Correct.”

“Did you kiss him at home?”

“I hugged him goodnight,”

Stortini asks about another day. He says that Ava and Matthew returned to the spot where they first had sex and where she later alleged the rape took place.

“He came to your house, picked you up. You went to where you both knew it was safe… and you parked there.”

“No,” she insists.

“That didn’t happen?”

“If we wanted to do that, we had my home when no one was home. No.”

A few questions later, the judge puts an end to things. Earlier he had asked Stortini and Ava “to give each other more space” — for him to let her finish her answers and for her to let him finish his questions. “It’s been a long day,” he says.

Parts 3 and 4 of “She said, he said” can be found here.